Lin Yi-shih case in need of review

By Jerry Cheng 鄭文龍 /

Mon, May 20, 2013 - Page 8

On April 30, the Taipei District Court announced its verdict in the trial of former legislator and Executive Yuan secretary-general Lin Yi-shih (林益世) on corruption charges.

Lin was found to have accepted a payment of NT$63 million (US$2.13 million) from a contractor, and to have put pressure on the contractor to pay him another NT$83 million, but the court found him not guilty of corruption.

The ruling has caused an outcry. What is even more absurd is that one of the trial judges later attributed this verdict to inconsistent interpretations of public officials’ “legally defined powers” and “actual influence.”

Lin’s position as Executive Yuan secretary-general made him the chief adviser to the premier, so that he was legally empowered to assist the premier in coordinating, directing and overseeing departments and personnel under the authority of the Cabinet.

The powers of the Executive Yuan secretary-general derive from those of the premier, while the legal definition of the premier’s authority is that he or she is the nation’s top executive leader.

Furthermore, according to Judicial Yuan interpretations 613 and 627, apart from the military, diplomatic and related powers vested in the president by the Constitution, all other powers are in the hands of the premier. The Executive Yuan secretary-general therefore holds the executive powers of assisting the premier in his functions of coordination, direction and oversight, and his powers can be said to be higher than those of anyone except for the premier and vice premier.

In exercising these powers, Lin was in a position to wield a degree of authority over the personnel and policies of the China Steel Corp, since it is a state-owned company.

Specifically, Lin, as Executive Yuan secretary-general, was endowed by law with a certain level of legally defined powers.

However, the Taipei District Court’s verdict is based on the erroneous view that Lin had no legally defined powers, so it is hardly surprising that the judgment has provoked a strong backlash.

Having made this error in its verdict, the judges have not only failed to recognize their own mistake, but have gone even further astray by trying to tie it up with the Supreme Court’s ruling about actual influence.

Records show that 400 verdicts handed down by the Supreme Court over the past 50 years have all been based on legally defined powers and never on actual influence.

That is because basing them on the notion of actual influence would clearly violate the principle of legality, which holds that a person may only be punished for an act that is defined by law as a punishable offense.

Notably, in 2006 the legislature approved an amendment to the Criminal Code that defined public officials who could be accused of taking bribes more precisely as those having legally defined powers. This should leave no room for judges to misrepresent the definition as having to do with actual influence.

However, President Ma Ying-jeou (馬英九) was dissatisfied when former president Chen Shui-bian (陳水扁) was found not guilty in his first-instance trial on corruption charges related to the second round of financial reforms.

Ma summoned the president and vice president of the court for a meeting, two days after which the Supreme Court changed direction and, departing from the interpretation that had stood unchanged for the previous 50 years, concocted the notion of “actual influence.”

This altered definition was clearly tailor-made to fit Chen. As a result of this unlawful and unconstitutional distortion of the law, Chen was convicted and sentenced to a lengthy prison term.

Considering that this interpretation clearly violates the principle of legality, it would not normally be used by anyone in the legal profession.

Lin’s case is in need of a thorough review. It should be clarified that, since Lin was vested with legally defined powers, there is no need to drag in the highly dubious notion of “actual influence.”

The Supreme Court should cease misinterpreting and misusing the notion of actual influence, and instead return to the interpretation that had previously stood unchanged for 50 years and that complies with the 2006 amendment to the Criminal Code.

Furthermore, the Supreme Court should get back in line with judicial normality by righting the injustice done to Chen.